Forget politics – Who has legal right to Jerusalem?

Canadian lawyer specializing in international law says Israel has an open-and-shut case when it comes to the capital.

3 minute read.

Jerusalem's old city 370.
(photo credit:Thinkstock/Imagebank)

Is there a simple answer to the question of who owns or has the legal right to
Jerusalem? Dr. Jacques Gauthier, a Canadian lawyer who specializes in
international law, answered that question on Wednesday with a resounding yes and
suggested that if a theoretical court that was 100-percent objective were to
study the legally relevant facts, ignoring politics, it would find unequivocally
that only Israel possesses the exclusive title to Jerusalem.

Gauthier was
interviewed by The Jerusalem Post during a trip he made to Israel for a June 11-
12 conference highlighting Jewish claims to Jerusalem. He has been studying
international law for 30 years, focusing on a number of issues including human
rights, and has not limited himself solely to the Middle East. He studied
in Geneva under Dr. Marcelo Kohen in 2006.

Gauthier has
presented his findings to the Japanese parliament, the House of Commons in
London, the European parliament in Brussels and a congressional committee in
Washington.

Gauthier, who is Christian, said that he became interested in
Jerusalem’s status after traveling to the city in 1982-1983.

Gauthier
begins his overview of the issues with Theodore Herzl in 1896-1897 and the
Balfour Declaration of 1917, but the core of his argument and its most original
aspect is the emphasis he places on the San Remo Conference of April 24-25,
1920.

The conference was a continuation of earlier gatherings held by the
victors of World War I to determine how to handle a vast array of issues,
including setting national borders for new nation-states and
mandates.

Gauthier says that the San Remo Conference was the “final
hearing” of a “world court,” the council of the five leading nations and victors
of World War I. The “case” before the “court” began at the Paris Peace
Conference of 1919, where both the Jews and the Arabs of the Middle East
submitted claims to the council to obtain independence and control of various
territories. Gauthier calls April 24-25 in San Remo the “key defining moment in
history” on the issue of title to Jerusalem and says that Chaim Weizmann called
the decision the “most important moment for the Jewish people since the
exile.”

Gauthier is not the first scholar to cite these conferences as
supporting Jewish rights to Jerusalem. However, what is distinct about
Gauthier’s claim is the argument that the conference is a singular and decisive
legal event that wipes out all competing legal events.

Like a real estate
lawyer seeking to determine title, he contends that just because there are many
claims to title, it does not mean that all events or claims are equal. He argues
that it is possible to have one single legal event that ends the discussion, and
that the San Remo decision was such an event.

The Jewish claim submitted
to the world powers according to Gauthier was for: the Jews’ standing to be
recognized as a people under the law of nations; the recognition of the Jewish
historical connection to the area then known as “Palestine”; and the right to
“reconstitute” Jewish historical rights in Palestine.

The Arabs also made
substantial claims to Ottoman territory, but not specifically to Palestine or
Jerusalem, says Gauthier.

The San Remo military and political leaders
agreed to all of the Jewish representatives’ requests. According to Gauthier,
the British were given a mandate over Palestine only until the Jews would be
ready to take over running a country, which is confirmed, he says, by Article 22
of the Covenant of the League of Nations.

According to Gauthier, the case
and all arguments are basically over at this point. The Jewish people were given
“title” to Jerusalem under international law.

Gauthier concludes his
analysis by rejecting the idea that any later events – such as the UN Partition
Plan, UN Resolution 242, or the Oslo Accords – superseded Israel’s “title” to
Jerusalem. He notes that the UN charter and a famous International Court of
Justice case about West Africa, or Namibia, specifically uphold earlier
decisions of major conferences and of the League of Nations.

He argues
that all Israel needs to do under UN Resolution 242 and the Oslo Accords is
withdraw from some amount of West Bank territory, and that Jerusalem is not
mentioned in the UN resolution. He said that the UN Partition Plan could have
been binding, but since the Arab states did not accept it, it became merely a
recommended solution by the UN General Assembly that was rejected.

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